Interim Resolution ResDH(2004)72
concerning the failure to enforce judicial eviction orders against tenants in Italy
(Immobiliare Saffi, judgment of 28 July 1999 and other cases – see appended list)
(Adopted by the Committee of Ministers on 8 December 2004
at the 906th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),
Having regard to the judgments of the European Court of Human Rights (see Appendix II) transmitted to the Committee of Ministers under Articles 44 and 46 of the Convention, which concern repeated violations by Italy of Article 6 (right to a hearing) of the Convention and Article 1 of Protocol No. 1 (right to peaceful enjoyment of possessions) given the applicants' inability to recover their properties because of the prolonged failure to enforce domestic judgments ordering the eviction of tenants;
Recalling that the failure to enforce the court orders in these cases was the result either of legislation suspending or staggering enforcement or simply of the applicants' inability to obtain assistance from the police and that no satisfactory remedies were available to enable the applicants to establish the state's liability and obtain compensation for delays in, or lack of, enforcement;
Whereas the large number of violations found by the Convention organs since 1997 (140) and the even larger number of similar cases resolved in friendly settlements before the Court (160) reveal the existence of a serious and persistent structural problem;
Recalling that the obligation of all states to abide by the judgments of the European Court of Human Rights in accordance with Article 46, paragraph 1, of the Convention involves an obligation to adopt individual measures to erase the consequences of the violations of the applicants' rights, as well as general measures to prevent the recurrence of violations similar to those found by the Court;
Underlining that the need to adopt such measures is all the more pressing given the time that has elapsed since the first violations in this respect were found and drawing attention in this connection to the Committee's Resolutions and Declarations aimed at ensuring the long-term effectiveness of the European Court of Human Rights and improving the execution of its judgments (see, in particular, Res(2004)3);
Having considered the information provided by Italy on the measures taken to date (see appendix I to this resolution);
Noting with concern that, in spite of the legislative reforms adopted in 1998, the underlying problems which led to these cases have not been resolved, as demonstrated by the continuing stream of new applications to the Court and the fresh violations it continues to find on a systematic basis;
Noting with interest that a domestic remedy implemented under the “Pinto Law” in principle allows for some degree of compensation for delays in enforcement and may therefore improve, if only temporarily, the situation of the landlords concerned;
Regretting, however, that the absence of a general solution to the underlying problem means that Italy is still obliged to continue passing legislation suspending the enforcement of eviction orders issued in landlords' favour and that such suspension of enforcement has again been extended to 31 October 2004 for certain categories of tenants in major cities (Legislative Decree no. 240/2004 of 13 September 2004);
Underlining, in particular, that this new legislative decree suspending enforcement came three months after the ruling by the Italian Constitutional Court of 28 May 2004 warning against fresh legislation suspending the enforcement of eviction orders, which would be incompatible with the constitutional requirement for proceedings to be of a reasonable length;
Deploring the fact that, even in the cases where the European Court of Human Rights has found violations, a number of applicants have still not been able to recover their properties and that the failure to enforce court orders issued in their favour has persisted for many years;
Recalling, as stated by the Court, that failure by the authorities to execute the judgments of the domestic courts is likely “to lead to situations incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the Convention”[1];
Recalling that it therefore falls to the Italian state to find the necessary solutions for safeguarding the interests of vulnerable tenants without persistently violating landlords' legitimate right under the Convention to have the eviction orders issued in their favour by the Italian courts enforced;
URGES the Italian authorities to put an end without delay to the violations of the Convention found by the European Court in those cases where the applicants continue to be faced with the failure to execute domestic judgments and are therefore unable to recover their properties (see cases indicated in bold type in Appendix II);
WELCOMES the recent ruling by the Italian Constitutional Court dated 28 May 2004 underlining the serious human rights issues likely to be raised by the legislation suspending enforcement and encourages the Italian authorities to step up their efforts to give full effect in Italy to the Convention and the judgments of the European Court;
CALLS ON the Italian Government to give priority to resolving the underlying structural problems which led to the violations found in these cases with a view to meeting its obligations under the Convention without further delay;
Consequently ENCOURAGES the Italian authorities:
to adopt effective measures to remedy the problems in the housing sector, in particular in densely populated cities, without, however, having recourse to legislation preventing enforcement;to make sure that the police are employed in a timely manner to enforce eviction orders;to adopt legislative or other measures to make sure that the authorities and officials actually comply with final court judgments;to strengthen the system of remedies in respect of failure to enforce court orders so as to enable all injured parties to establish the state's liability and obtain promptly satisfactory compensation for the losses caused by such failure;
CALLS ON the Government to keep the Committee informed of the progress made on each of the above points and the practical effects of the measures adopted, in particular by supplying statistics on trends in the number of eviction orders not enforced;
ASKS the Government to ensure that this Resolution is widely disseminated in Italian to Parliament, the relevant government departments and the courts so as to draw their attention to their obligations under the Convention and the judgments of the European Court;
DECIDES to continue monitoring the execution of the judgments in question until such time as Italy complies with them and to resume consideration of the progress made in one year at the latest.
Appendix I to Interim Resolution ResDH(2004)72
Information supplied by the Government of Italy
during the consideration of the cases listed below
by the Committee of Ministers
In order to avoid fresh violations of the Convention because of the prolonged failure to enforce eviction orders:
1) A law was passed in December 1998 (Law no. 431/98 “Regulation on renting and vacation of dwellings”), laying down, inter alia, the conditions, procedures and enforcement deadlines for eviction orders.
- Under this law, it is now the judicial authority (Tribunale) rather than the administrative authority (Prefetto) which rules on landlords' right to obtain assistance from the police with the enforcement of eviction orders: the court order setting the date of the eviction authorises the bailiff to seek police assistance in enforcing the eviction.
- Once the court has set a date for enforcement of the eviction order, the tenant can make a single application for an extension of up to six months. The date of the eviction may be deferred by up to a maximum of eighteen months if the tenant is aged 65 years or over, has five or more dependent children, is registered on a “mobility list” (lista di mobilità) following redundancy, is receiving unemployment benefit or an allowance in lieu of salary, is the formally recognised tenant of low-cost accommodation or is the owner of a dwelling under construction or of a dwelling occupied by tenants against whom eviction proceedings are in progress. This extension also applies if the tenant or a member of his/her family who has been living with him/her for at least six months has a disability or is terminally ill. Applications for stays of enforcement must be examined by the courts within eight days.
- The law also sets out provisional regulations concerning eviction orders that were already enforceable when it entered into force. In particular, these have enabled eviction proceedings to be terminated in cases where agreement was reached between landlords and tenants on renegotiated leases. As a result, although the number of eviction orders enforced remained relatively stable between 1997 and 2002, with an average of approximately 18 000 a year, the number of applications for enforcement of eviction orders fell by 23.64% from 1998 to 1999, ie from 126 011 to 96 219, and the number of eviction proceedings also fell from 50 226 in 1997 to 37 610 in 2002.
- The law also includes measures to increase the supply of rented accommodation so as to make it easier for evicted tenants to find new dwellings.
- In addition, on 24 September 2001, the Constitutional Court declared unconstitutional a provision in Law no. 431/98 which restricted the right to have eviction orders enforced when landlords were not in compliance with their fiscal obligations (judgment no. 333/01).
2) The question of whether the frequent use of legislative measures suspending the enforcement of eviction orders was constitutional was also referred to the Constitutional Court. In judgment No. 155/2004 (28/05/2004), the Constitutional Court ruled that the legislative suspension of tenant evictions could be justified provided that it was only applied for a limited period. It also ruled that, if the Italian parliament passed fresh measures of this kind after 30 June 2004 (the date of the last legislative extension of the suspension of evictions), such measures would be unconstitutional and in breach of the requirement for proceedings to be of a reasonable length.
3) With regard to measures to compensate landlords in the event of the delayed enforcement of eviction orders:
- On 22 July 1999 (judgment No. 500/99), the Court of Cassation ruled that compensation could be paid for losses resulting from unlawful decisions by the authorities, for instance in the event of police assistance with the enforcement of eviction orders being refused on unlawful grounds.
- When the enforcement of eviction orders is suspended or deferred by law or by a court ruling, landlords are entitled to the payment of the rent with a 20% surcharge plus any requisite adjustment for inflation (Law no. 61/1989). Under rulings by the Constitutional Court on 25 October 2000 (judgment no. 482/00) and by the Court of Cassation on 7 November 2002 (judgment no. 15621), this compensation may be adjusted upwards by the courts to take account of the loss actually suffered by landlords (who must provide evidence thereof) for any period during which failure to enforce the eviction orders was not based on the law but was the result of the conduct of the tenants. In judgment no. 13628 of 22 July 2004, the Court of Cassation further stipulated that the evidence of the loss actually suffered could be based on presumptions, for instance the possibility of letting the property for a higher rent.
- Further to Court of Cassation judgment No. 11046/02 of 18 June 2002 (confirmed in a Court of Cassation judgment of 22 October 2002), landlords are also entitled to compensation from the state for unreasonable delays in the enforcement of eviction orders, under the “Pinto Law” (No. 89/01). The latter already provides for compensation in the event of unreasonable length of court proceedings in violation of Article 6, paragraph 1 of the European Convention on Human Rights. In judgment No. 11046/02, the Court of Cassation ruled that the “Pinto Law” was also applicable in cases where violations of the right to proceedings of a reasonable length resulted from “legislative choices that could lead to the length of proceedings being less than reasonable”, in violation of the European Convention on Human Rights.
4) Since June 2001, the Italian Ministry of the Interior has been in contact with the other relevant departments with a view to identifying more effective supplementary measures at administrative and legislative level, in particular concerning the simplification of procedures.
5) Since November 2003, the Ministry of Infrastructure and Transport has instructed its legislative office to study possible measures for striking a better balance between the protection of the public interest and the rights of landlords.
6) Moreover, the judgment in the Immobiliare Saffi case was published in the legal journal, Rivista internazionale dei diritti dell'uomo, No. 1/2000, pp. 252-265.
The Government will naturally keep the Committee of Ministers informed of any developments concerning the above issues, in particular concerning increases in the supply of rented accommodation and the proceedings before the Constitutional Court regarding the constitutionality of the present situation.
Appendix II to the Interim Resolution ResDH(2004)72
List of cases affaires (total number: 140)
The cases for which the autorities have not put an end to the violations found by the European Court appear in bold)[*]
22774/93Immobiliare Saffi, judgment of 28/07/99
66441/01A.G. No. 4, judgment of 09/10/03, final on 09/01/04
22534/93A.O., judgment of 30/05/00, final on 30/08/00
20177/92Aldini, Résolution intérimaire DH(97)413 du 17/09/97
30878/96Alfano, judgment of 11/12/03, final on 11/03/04
38011/97Aponte, judgment of 17/04/03, final on 17/07/03
35550/97Auditore, judgment of 19/12/02, final on 19/03/03
66920/01Battistoni, judgment of 31/07/03, final on 31/10/03
64258/01Bellini, judgment of 29/01/04, final on 29/04/04
64098/00Bellini Franco No. 2, judgment of 11/03/2004, final on 11/06/2004
37110/97Bertuccelli Marco, judgment of 04/12/03, final on 04/03/04
65413/01Bonamassa, judgment of 02/10/03, final on 02/01/04
62849/00Brienza, judgment of 16/10/03, final on 16/01/04
34999/97C. Spa, judgment of 03/04/03, final on 03/07/03
35428/97C.T. No. 2, judgment of 09/01/03, final on 09/04/03
63947/00Calosi, judgment of 16/10/03, final on 16/01/04
61665/00Calvanese and Spitaletta, judgment of 04/12/03, final on 04/03/04
59636/00Calvo, judgment of 11/03/2004, final on 11/06/2004
28724/95Capitanio, judgment of 11/07/02, final on 11/10/02H46-801
45006/98Capurso, judgment of 03/04/03, final on 03/07/03
48842/99Carbone Anna, judgment of 22/05/03, final on 22/08/03
31925/96Carignani, judgment of 11/12/03, final on 11/03/04
35777/97Carloni and Bruni, judgment of 09/01/03, final on 09/04/03
34819/97Cau, judgment of 15/11/02, final on 15/02/03
56717/00Cavicchi and Ruggeri, judgment of 30/10/03, final on 30/01/04
34412/97Ciccariello Franca, judgment of 09/01/03, final on 09/04/03
30879/96Ciliberti Raffaele, judgment of 15/11/02, final on 15/02/03
36268/97Clucher No. 2, judgment of 17/04/03, final on 24/09/03
45356/99Conti Lorenza, judgment of 10/07/03, final on 03/12/03
63938/00Cucinotta Rosario and Giovanni, judgment of 30/10/03, final on 30/01/04
32589/96D.V. No. 2, judgment of 15/11/02, final on 15/02/03
61667/00D'Aloe and others, judgment of 13/11/03, final on 13/02/04
33113/96D'Ottavi, judgment of 17/07/03, final on 17/10/03
37117/97De Benedittis, judgment of 17/04/03, final on 17/07/03
59634/00De Gennaro, judgment of 31/07/03, final on 31/10/03
41427/98Del Beato, judgment of 03/04/03, final on 03/07/03
36254/97Del Sole, judgment of 17/07/03, final on 17/10/03
37511/97Di Matteo, judgment of 11/12/03, final on 11/03/04
34658/97E.P. No. 4, judgment of 09/01/03, final on 09/04/03
30883/96Esposito Paola, judgment of 19/12/02, final on 19/03/03
58413/00Fabbri, judgment of 04/12/03, final on 04/03/04
48145/99Fabi, judgment of 17/04/03, final on 17/07/03
63523/00Federici C. and L., judgment of 09/10/03, final on 09/01/04
62764/00Federici Mario and others, judgment of 04/12/03, final on 04/03/04
39735/98Fegatelli, judgment of 03/04/03, final on 03/07/03
63408/00Ferroni Rossi, judgment of 31/07/03, final on 31/10/03
60464/00Fezia and others, judgment of 31/07/03, final on 31/10/03
33909/96Fiorani, judgment of 19/12/02, final on 19/03/03
34454/97Fleres, judgment of 19/12/02, final on 19/03/03
32577/96Folli Carè, judgment of 15/11/02, final on 15/02/03
33376/96Folliero, judgment of 19/12/02, final on 19/03/03
48171/99Fossi and Mignolli, judgment of 04/03/04, final on 04/06/04
31740/96G. and M., judgment of 27/02/03, final on 27/05/03
43580/98G.G. No. 6, judgment of 03/04/03, final on 09/07/03
22671/93G.L. No. 4, judgment of 03/08/00, final on 03/11/00
59635/00Gamberini Mongenet, judgment of 06/11/03, final on 06/02/04
59454/00Gatti and others, judgment of 31/07/03, final on 31/10/03
63417/00Gelsomini Sigeri S.r.L., judgment of 18/12/03, final on 18/03/04
32662/96Geni Srl, judgment of 19/12/02, final on 19/03/03
53233/99Ghelardini and Brunori, judgment of 09/10/03, final on 09/01/04
28272/95Ghidotti, judgment of 21/02/02, final on 21/05/02
31663/96Giagnoni and Finotello, judgment of 19/12/02, final on 19/03/03
62842/00Giuliani, judgment of 04/12/23, final on 04/03/04
63514/00Giunta, judgment of 04/12/03, final on 04/03/04
32006/96Gnecchi and Barigazzi, judgment of 15/11/02, final on 15/02/03
32374/96Guidi I. and F., judgment of 19/12/02, final on 19/03/03
32766/96Immobiliare Sole Srl, judgment of 19/12/02, final on 19/03/03
34442/97Indelicato Antonio, judgment of 06/11/03, final on 06/02/04
64151/00Kraszewski, judgment of 31/07/03, final on 31/10/03
32392/96L. and P. No.1, judgment of 15/11/02, final on 15/02/03
33696/96L. and P. No. 2, judgment of 19/12/02, final on 19/03/03
32542/96L.B. No. 3, judgment of 15/11/02, final on 15/02/03
41610/98L.M. No. 7, judgment of 03/04/03, final on 03/07/03
62020/00La Paglia, judgment of 31/07/03, final on 31/10/03
63336/00Lari, judgment of 09/10/03, final on 09/01/04
52071/99Leonardi Anselmo, judgment of 04/12/03, final on 04/03/04
60659/00Lerario, judgment of 04/12/03, final on 04/03/04
64254/01Liguori, judgment of 11/12/03, final on 11/03/04
36149/97Losanno and Vanacore, judgment of 17/04/03, final on 17/07/03
21463/93Lunari, judgment of 11/01/01, final on 11/04/01
32391/96M.C. No. 11, judgment of 19/12/02, final on 19/03/03
31923/96M.P., judgment of 19/12/02, final on 19/03/03
42343/98Malescia, judgment of 03/04/03, final on 03/07/03
31548/96Maltoni, judgment of 15/11/02, final on 15/02/03
60388/00Marigliano, judgment of 31/07/03, final on 31/10/03
35088/97Marini E., C., A.M., R. and S., judgment of 09/01/03, final on 09/04/03
31129/96Merico, judgment of 15/11/02, final on 15/02/03
58408/00Miscioscia, judgment of 31/07/03, final on 31/10/03
61995/00Montanari, judgment of 11/03/2004, final on 11/06/2004
58191/00Mottola, judgment of 22/05/03, final on 22/08/03
62848/00Nicolai, judgment of 27/11/03, final on 27/02/04
35024/97Nigiotti and Mori, judgment of 17/04/03, final on 17/07/03
24650/94P.M. No. 1, judgment of 11/01/01, final on 5/09/01
34998/97P.M. No. 2, judgment of 17/04/03, final on 17/07/03
15919/89Palumbo, judgment of 30/11/00, final on 01/03/01
37008/97Pannocchia, judgment of 17/04/03, final on 17/07/03
46161/99Pepe Giuseppa, judgment of 17/04/03, final on 17/07/03
60431/00Petitta, judgment of 04/12/03, final on 04/03/04
63543/00Petrini Fernando, judgment of 27/11/03, final on 27/02/04
59273/00Picone, judgment of 11/03/2004, final on 11/06/2004
57635/00Poci, judgment of 04/12/03, final on 04/03/04
60391/00Pollifrone, judgment of 11/03/2004, final on 11/06/2004
59367/00Pozzi, judgment of 04/12/03, final on 04/03/04
59539/00Pulcini, judgment of 17/04/03, final on 17/07/03
67412/01Ragone, judgment of 02/10/03, final on 02/01/04
67796/01Recchi, judgment of 04/12/03, final on 04/03/04
32385/96Ricci Onorato, judgment of 17/07/03, final on 17/10/03
55388/00Rispoli, judgment of 30/10/03, final on 30/01/04
50293/99Robba, judgment of 09/10/03, final on 09/01/04
36249/97Rosa Massimo, judgment of 17/04/03, final on 17/07/03
55725/00Rosati, judgment of 17/07/03, final on 17/10/03
30530/96Rossi Luciano, judgment of 15/11/02, final on 15/02/03
59538/00Sabatini and Di Giovanni, judgment of 02/10/03, final on 02/01/04
32644/96Sanella, judgment of 19/12/02, final on 19/03/03
59537/00Savio Delfino, judgment of 16/10/03, final on 16/01/04
31012/96Savio, judgment of 19/12/02, final on 19/03/03
56924/00Scalera, judgment of 13/11/03, final on 13/02/04
61282/00Scamaccia, judgment of 04/12/03, final on 04/03/04
63414/00Scaravaggi, judgment of 04/12/03, final on 04/03/04
33227/96Scurci Chimenti, judgment of 19/12/02, final on 19/03/03
58607/00Serafini, judgment of 16/10/03, final on 16/01/04
47703/99Serni, judgment of 09/10/03, final on 09/01/04
65120/01Siena Antonio, judgment of 11/03/2004, final on 11/06/2004
64449/01Soc. De.., judgment of 04/12/03, final on 04/03/04
40465/98Sorrentino Prota, judgment of 29/01/04, final on 29/04/04
61666/00Spalletta, judgment of 04/12/03, final on 04/03/04
31223/96T.C.U., judgment of 15/11/02, final on 15/02/03
23424/94Tanganelli, judgment of 11/01/01, final on 11/04/01
47758/99Tassinari, judgment of 16/10/03, final on 16/01/04
62000/00Tempesti Chiesi and Chiesi, judgment of 31/07/03, final on 31/10/03
62844/00Todaro, judgment of 04/12/03, final on 04/03/04
35637/97Tolomei, judgment of 09/01/03, final on 09/04/03
33252/96Tona, judgment of 15/11/02, final on 15/02/03
33204/96Tosi, judgment of 15/11/02, final on 15/02/03
33692/96Traino, judgment of 17/07/03, final on 17/10/03
30972/96V.T., judgment of 15/11/02, final on 15/02/03
66373/01Vietri, judgment of 04/12/03, final on 04/03/04
48730/99Voglino, judgment of 22/05/03, final on 22/08/03
36377/97Zannetti, judgment of 17/04/03, final on 17/07/03
35006/97Zazzeri, judgment of 19/12/02, final on 19/03/03
[1] Hornsby v. Greece, judgment of 19 March 1997, paragraph 40.
[*] In the other cases, the applicants recovered their apartments between 1992 and 2003, i.e. between 4 and 17 years after the eviction decisions had been issued.
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